Karnataka High Court
Mr. Devaraya Shenoy vs Sri S. Ravindra Shenoy on 5 July, 2018
Author: S G Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2018
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION Nos.31872-75/2014 (GM-CPC)
BETWEEN:
MR.DEVARAYA SHENOY
AGED ABOUT 59 YEARS
S/O LATE S.MADHAVARAYA SHENOY
RESIDING AT "DIVYA"
MALEMAR ROAD
KOTTARA CHOWKI
MANGALORE-575 006. ... PETITIONER
(BY SRI.P.D.VISHWANATH, ADV.)
AND:
1. SRI S. RAVINDRA SHENOY
AGED ABOUT 64 YEARS
S/O LATE S.MADHAVARAYA SHENOY
PRESENTLY RESIDING AT "BHARADWAJ"
NARAYANA LAYOUT
MALTE CROSS ROAD
KALLIANPUR
UDUPI DISTRICT-576 114.
2. SRI.S.PURUSHOTHAM SHENOY
AGED ABOUT 61 YEARS
S/O LATE S.MADHAVARAYA SHENOY
3. SRI.PUNDALIKA SHENOY
AGED ABOUT 54 YEARS
S/O LATE S.MADHAVARAYA SHENOY
2
4. SRI.SADANANDA SHENOY
AGED ABOUT 51 YEARS
S/O LATE S. MADHAVARAYA SHENOY
NOS.2 TO 4 ARE RESIDING AT URVA
CHILIMBI
MANGALORE-575 006.
5. MRS SRIMATHI KAMATH
AGED ABOUT 46 YEARS
W/O DR SATISH SHANKAR KAMATH
RESIDING AT 48/2303, GULMOHAR
BEHIND APNA BAZAR
M.H.S. COLONY
GANDHINAGAR, BANDRA (W)
MUMBAI-400 051.
6. MRS. BHARATHI BORKAR
AGED ABOUT 44 YEARS
W/O PRASHANTH BORKER
RESIDING AT 9, LAXMI SAGAR APARTMENT
PLOT NO.3-C, SAI SECTION
AMBARNATH (E) 421 501.
7. MRS. GOWARI @ SUGANDHI SHENOY
AGED ABOUT 84 YEARS
W/O LATE S.MADHAVARAYA SHENOY
RESIDING AT URVA
CHILIMBI
MANGALORE-575 006. ... RESPONDENTS
[BY SMT.K.B.JAYALAKSHMI, ADV. FOR
SRI.O.SHIVARAMA BHAT, ADV. FOR R2 TO R4 & R7
R1, R5 & R6 ARE SERVED]
********
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
AND 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO SET ASIDE THE ORDER DATED 17.3.2014 ON I.A.NO.XVII
AND ORDER DATED 23.06.2014 ON I.A.NOS.XVIII, XIX AND XX
3
IN ORIGINAL SUIT NO.210 OF 2001 IN THE COURT OF THE I
ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE,
D.K.DISTRICT. AND ETC.,
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court challenging the order dated 17.3.2014 passed on I.A.No.17 and order dated 23.06.2017 on I.A.Nos.18, 19 and 20 in O.S.No.210/2001 on the file of I Additional Senior Civil Judge, Mangalore, D.K.
2. The petitioner is plaintiff and respondents are defendants in O.S.No.210/2001, which is filed for partition and for separate possession. The defendants took up the contention of Will which is produced as Exs.D.25 and 26. After adducing the evidence, the plaintiff filed an application under Order 26 Rule 10A of the CPC to refer Exs.D.25 and D26 and Exs.P11 and P13, deposition of DW.3 to verify the signature of Madhavaraya Shenoy executor of the Will and Nagesh 4 Shenoy attestor to the Will, so as to confirm signatures found therein are of them. The trial Court by its order dated 17.3.2014 rejected the said I.A.No.17, thereafter the plaintiff had filed I.A.No.18 to re-open the case to summon the witness and I.A.Nos.19 to issue summons to the author of the report and I.A.No.20 for production of report dated 15.03.2014, which were also rejected by order dated 23.06.2014. Both orders are impugned in the present writ petition.
3. Heard the learned counsel for the petitioner and respondents and perused the writ papers.
4. The learned counsel for the petitioner submits that I.A.No.17 is filed under Order 26 Rule 10A of CPC to refer the four documents Exs.P11, 13, Exs.D25 and 26 and deposition of DW.3 to the expert to verify the signature of late Madhavaraya Shenoy executant of the Will and Nagesh Shenoy, the attestor to the Will, so as to confirm the signature found therein. The plaintiffs 5 have disputed the said Will. He further submits that it is a created document and signatures found therein on Exs.D25 and D26 are not the signature of late Madhavaraya Shenoy and Nagesh Shenoy. Therefore, the learned counsel submits that to obtain the opinion of the expert, he filed an application to refer the documents to the expert. He submits that the signature of late Madhavaraya Shenoy found in Exs.D25 and D26 could be compared with Exs.P11 and P13 which are the applications made to Mangalore City Corporation and Canara Bank respectively wherein it contains the signature of Madhavaraya Shenoy. Further to compare the signature Nagesh Shenoy attestor to the Will, he submits that deposition of DW.3 Nagesh Shenoy may be forwarded to the expert to verify the signature.
5. Per contra, the learned counsel for the respondents submits that the plaintiffs have challenged the order dated 11.3.2014 by which I.A.No.17 was 6 rejected and he waited for the orders to be passed on I.A.Nos.18, 19 and 20 and thereafter has challenged the order passed on I.A.No.17. He is not diligent in prosecuting the case and further states that the applications are filed at a belated stage i.e., at the stage of arguments, which is not maintainable. The learned counsel for the respondents submits that there are no admitted signatures of late Madhavaraya Shenoy to be compared by the experts.
6. The suit is one for partition and for separate possession. The parties have completed their evidence and the matter is at the stage of arguments. The defendants have taken the contention of Will in their favour executed by Madhavaraya Shenoy. The plaintiff disputed the said Will and also the signature contained therein. The plaintiff disputes that it is not the signature of late Madhavaraya Shenoy and Nagesh Shenoy. Therefore, in the circumstances, it is proper 7 for the Court to send the signatures to the expert to verify with the admitted signatures. The learned counsel for the petitioner has relied on the decision of this Court in B. NAGARAJAPPA Vs. SMT. BORAMMA AND OTHERS reported in 2010(4) KLJ 223 to say that, whenever signatures are disputed it is safe to refer the matter to an expert for comparison of signatures under Order 26 Rule 10A of CPC. If the Court comes to the conclusion that scientific investigation is required, it could refer for scientific investigation and to obtain report. Under Order XXVI Rule 10A of CPC discretionary power is conferred on the Court to issue Commission directing the Commissioner to enquire into such question and report thereon to the Court. The defendants' contention that plaintiffs have challenged order on IA No.17 subsequent to rejection of IAs for reopening and summoning the witness and the IA filed for appointment of Commissioner/Expert is belated one is liable to be rejected, since Under Order XXVI Rule 8 10A of CPC, if the Court comes to the opinion that it is necessary or expedient in the interest of justice to do so, the Court could refer the matter for Commissioner/Expert for scientific investigation. On the facts of the present case, the plaintiffs have made out a case for appointment of Commissioner for scientific investigation. Therefore, in my opinion, the writ petition is liable to be allowed.
7. Accordingly, the writ petitions are allowed, setting aside the impugned order dated 17.3.2014 passed on I.A.No.17. In view of setting aside the order passed on I.A.No.17, it is not necessary to consider the order dated 23.06.2014 passed on I.A.Nos.18, 19 and
20. Accordingly, I.A.No.17 is allowed and the documents Exs.P11, 13 and Exs.D.25 and D.26 and deposition of D.3 be referred to handwriting expert to verify the signatures of Madhavaraya Shenoy and Nagesh Shenoy found on those documents. 9
8. Taking into consideration that the suit is of the year 2001, the trial Court is directed to dispose of the suit as expeditiously as possible.
SD/-
JUDGE NG* CT:SK